SCO's Last Open Letter Draws Response from Red Hat Cofounder Bob Young

To the Editor:

I've kept out of this debate as I no longer work at Red Hat and wanted to give Matthew Szulik and the Red Hat team complete control over Red Hat's communications with the press. But three years have passed since I worked at Red Hat. Lulu.com is where I'm spending my time and energies, now I figure I can and should speak up. Lulu is attempting to create a marketplace for digital content. Its goal is nothing less than to enable authors to decide for themselves how to edit, market, and grant rights to others over the use of their works (copyright). On the off-chance that anyone is taking [SCO Group CEO] Darl McBride's campaign seriously I can no longer sit idly by, as to do so could some day restrict the users of Lulu.com from choosing the copyright terms and conditions that most suit the needs of the projects they are trying to advance.

Bob Young,
CEO, Lulu.com (co-founder of Red Hat in another life)

Dear Darl:

Many smarter people than me have demolished your arguments around the idea that anyone has knowingly stolen any property from you. Yet you continue to refuse to tell anyone what it is that you claim has been stolen. So your arguments against others ring very hollow. It is like my claiming you broke into the trunk of my car and stole something from me. But then I refuse to tell anyone, the police or anyone else, what was stolen, or even allow anyone to look in the trunk of my car. Your strategy would be laughable if it were not costing everyone involved huge amounts and of time and effort to correct your errors and respond to your lawyers.

Secondly, no one is arguing against copyright. Everyone agrees intellectual property, from trademark law to copyrights and patents, is a good thing.

Ok, so maybe Richard Stallman of the Free Software Foundation, the inventor of the GPL license, thinks it is not a good idea to copyright software. But even Richard thinks copyright has its place to enable authors to earn a living. Free markets are not so fragile that a new idea like the GPL can threaten them. The only thing that can threaten free markets in a democracy is fear. Fear can cause well-meaning governments to enact flawed legislation. The kind of legislation the DMCA represents. The DMCA is the equivalent of trying to stop break-and-entry of homes by making screwdrivers illegal. Breaking and entering should be illegal. Allowing honest citizens to own innocent tools that evildoers might use to break and enter must remain perfectly legal. It is the crook who should be sent to jail, not the tool nor the owner of the tool.

The Supreme Court case that you misrepresent in your latest open letter demonstrates the Justices think too much of a good thing may no longer be so good. The case you quote (Eldred vs Ashcroft) was accepted by the Supreme Court specifically because they wanted to consider whether copyright, enacted by the founding fathers with a term of 14 years, may be getting stretched a little too far at its current 95 years. The case was decided based on the Justices concluding that it was up to Congress, not the Supreme Court, to set the terms of copyright law. Groups like Creative Commons are working to fix in the marketplace the problems caused by recent expansions of copyright terms. But then you seem to have little respect for the marketplace.

The sad thing about your arguments is that you undermine them by running your company so badly. SCO's revenues from the sale of goods and services (not counting some very odd license "revenue") have fallen every quarter since you took over SCO. Corporate America does not illegally download anyone's property to save a few bucks. They purchase the best product and services available from the companies they trust the most. You and your team have proven to be incapable of producing good products, at least not as good as those from other suppliers. These self-serving "open letters" make SCO appear extremely untrustworthy. So you have violated both of the customer service rules you should be focused on honoring.

Darl, for the sake of your case in front of the courts, for the sake of your company's ability to win customers, for the sake of everyone's blood pressure, and to save yourself further personal embarrassment, you might want to be less vocal. All you are doing is causing your audience to educate themselves. Once everyone understands how wrong you are your stock price will suffer. Hmm, suddenly when I think about it -you might in fact be doing us all a favor.

Thanks,
Bob Young
CEO, Lulu.com

Linux doyen and head of Linux International maddog Hall wasn't any too thrilled with Darl either.

To the Editor:

I would like to respond to Darl McBride's open letter about copyrights.

First of all, Mr. McBride seems to think that the GPL (a license which gives certain rights and has certain restrictions on how to distribute software) somehow diminishes the copyright laws of the United States. It does not.

In fact, the GPL depends very heavily on the fact that the AUTHOR of the copyrighted work owns the right to that work and what becomes of it.

The United States Constitution, Article 1, Section 8, Clause 8 actually says:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" It does not say (as Mr McBride implies) that that right is simply to make money, although that certainly is one of the rights of the Authors and inventors. The right that the Constitution talks about is the right of the authors and inventors to do anything they want with their writings and discoveries, including the right to give it away, either freely or under certain conditions.

The GPL is a license, just as there are other licenses. Some companies, such as MySQL, actually license their code under several different licenses. One license may require that you pay them money for their code on a per unit basis, another license may require that you freely distribute your changes to their code if you wish to freely use it.

Mr. McBride talks about the Digital Millennium Copyright Act (DMCA). Most of the feelings stirred by that act is not about the right of the author to determine what happens to his work overall, but the right of the individual to make one copy for "personal use"...something best illustrated by the concept of "the party tape" that has been effectively removed from existence due to the arcane application of anti-copy technologies. Linux users cannot legally watch a legally purchased DVD on a GPLed operating system (their operating system of choice) because it is illegal to disclose how to decode the encryption mechanisms. There are many legislators in the United States today who are taking a second look at the DMCA law and discovering that it is just a bad piece of legislation (it happens sometimes) and needs to be modified to meet its goals of limiting the unbridled reproduction and distribution of intellectual property. Mr. McBride somehow hopes to link the national feelings for the Constitution with the poorly conceived and written DMCA law.

But the DMCA law has nothing to do with the GPL.

Mr. McBride claims that the GPL does not allow for "any proprietary use whatsoever," yet many companies use the GPLed compilers to generate closed-source applications. People use Linux (GPLed code) to run proprietary closed-source businesses. What Mr. McBride really means is that the GPL does not allow a company to take the software created by the sweat and work of another person, add a few lines of code to it and then sell it to make a huge profit. If this was the desire of the original copyright holder, all they had to do was license the code under the BSD license, which allows this type of action. But the original author CHOSE not to, as was their RIGHT. It seems to me that Mr. McBride is very anxious to take away the right of an author to license his code the way he see fit, and only be able to license it the way that Mr. McBride sees fit.

In the case of Eldred v Ashcroft the majority justices stated that:

"encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors"

and that:

"copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge. The profit motive is the engine that ensures the progress of science."

Unfortunately the Justices did not think of any other "profit" that could come from science than the dollar bill. Perhaps they should go out to the Web and take a look at www.sourceforge.net, where over 70,000 projects are being worked on by over 740,000 programmers from all over the world. They have a profit motive, but the motive is not entirely tied to money. Sometimes the motive is "fame," sometimes "peer respect" and sometimes it is just the good feeling that you get when you help some other person solve a problem, something that is often called "the golden rule." Perhaps the Justices should accompany me on trips all over the United States and the world where I see people using free and open source software (licensed by the GPL) allowing them to use software legally that they could not otherwise afford, and to legally improve it to better fit their needs, all allowable because of the GPL license.

The Justices might also pay attention to a very excellent invention whose inventor DID NOT choose to patent it, although he could have. Instead he chose to publish his work and allow any one of his competitors to make it freely. This, in turn generated more demand for his invention than he would otherwise had if he had patented it and kept the other vendors from manufacturing it. The date was 1703, and the invention was the pianoforte, which today we call simply "the piano." Patents and copyrights do not ALWAYS mean the most profit for the author or inventor, nor the best for "the common good."

In times past when creating computer programs meant access to a machine that costs six million dollars, fitted to a large air-conditioned room that used kilowatts of power, more investment of money was required due to requirements for funding. Today really good software can be produced as a byproduct of solving a particular problem on already existing computer systems, and the owner has no real need to keep the software proprietary. Indeed, some people find that it is cheaper to use the GPL model and hope that others help them develop and improve the code than it is to go the traditional model and have to continue to develop the code themselves.

As an employee of the former Digital Equipment Corporation I often found software that our customers would like to have used. However our complex "profit model" that Mr. McBride puts forth often meant that useful software never saw the light of day. The software was deemed valuable, but not so valuable as to go through an entire product cycle and quality assurance cycle and therefore was lost inside of Digital. It is too bad that the open source model was NOT as accepted, as that technology might still be with us today.

How could the founding fathers or the early legislators have foreseen the Web, or even computers? How could they visualize thousands of people working freely all over the world, sharing ideas and information much faster than our intellectual property laws can keep up. And so it makes sense that the legislature and the justices review every once in a while the true meaning of "for the common good" and fit it to the current world, and not the world of past endeavors.

The issue with Eldred v Ashcroft was not whether copyrights were bad or illegal, but whether having extensions for such a long period over the original lengths made sense in an age where takes only a month for a paperback book to be published, distributed over the world, and sell five million copies.

Most people in the copyright world understand that the copyright, patent and trademark laws when applied to a global economy in an ever-shrinking world are hopelessly outdated. Not necessarily bad, just in need of being revised.

In summary, the GPL does NOT invalidate copyright, the DMCA deserves to be reviewed and corrected, there are other profit motives other than money, an even if there wasn't, the GPL does not preclude earning money with software.

What the Free and Open Source community objects to, has always objected to and continues to object to is Mr. McBride continually stating that some of the code that is in Linux, contributed over the past 12 years by many, many original authors, is now owned by his company when he has not shown one shred of real evidence.

Jon "maddog" Hall
Executive Director
Linux International